Opinion
No. 1805
July 5, 1933
DIVORCE — EVIDENCE — PUBLIC POLICY — SUFFICIENCY OF GROUNDS.
1. In wife's suit for divorce for extreme cruelty and intolerable indignities, evidence held insufficient to authorize decree (Rev. St. 1931, 35-108). 2. Public policy requires that marital relations should not be severed without adequate cause and satisfactory proof thereof. 3. Mere general statements of misbehavior or conclusions of parties will not authorize divorce, but court must be placed in possession of facts fairly establishing statutory ground of divorce (Rev. St. 1931, § 35-108).
APPEAL from the District Court of Weston County; Sam M. Thompson, Judge.
The cause was submitted for the appellant on the brief of Raymond Diefenderfer of Newcastle.
The evidence in this case was insufficient to sustain a decree of divorce and alimony. Allowance of alimony is within the discretion of the court, but if unjust is reviewable on appeal. 19 C.J. 249; Lovejoy v. Lovejoy, 36 Wyoming 379; VanGelder v. VanGelder (Wash.) 112 P. 86. Alimony is not granted as a matter of course, nor as a penalty. State v. Court, (Wash.) 104 P. 771. An abuse of discretion would be reviewed on appeal. Mann v. Mann, 15 P.2d 478; 19 C.J. 256; 1 R.C.L. 930, 932. It is contended that the judgment was inequitable and unjust, in that there was an unfair division of property. The evidence was insufficient to sustain any ground for divorce. Some of the property set over to the plaintiff did not belong to either of them. The division of property provided by the decree compels appellant to pay out over $500.00 more than his property is worth and leaves him destitute and bankrupt. Moreover, it is unfair to creditors of appellant. There is not the slightest reason why any preference should have been shown to the wife. Under the facts of this case, the husband is the one who should have been favored. The entire judgment should be reversed and the case remanded for retrial.
The cause was submitted for respondent on the brief of Preston T. McAvoy of Newcastle.
In this case, the decree directed a division of personal property and transfer of the real estate to respondent. The general grounds of plaintiff's allegations were cruelty, to which defendant pleaded no defense. In divorce proceedings, it is competent for the court to assign the homestead to the innocent party, either absolutely or for a limited period. The doctrine of alimony is based upon the common law obligation of support. 19 C.J. 204. The court had jurisdiction to adjust the property rights of the parties. 9 R.C.L. 445. Divorce is prima facie prejudicial to the public interest. Hawley v. Hawley (Ore.) 199 P. 589; Van Dommelen v. Van Dommelen (Mich.) 187 N.W. 324. Marriage is contractual in its inception. It is the source of the family, the safeguard of public and private morals. Dalrymple v. Dalrymple, 17 Eng. Rul. Cas. 10; State v. Duket (Wisc.) 63 N.W. 83; Coy v. Humphreys (Mo.) 125 S.W. 877. Marriage and divorce may be regulated by legislature. Barrington v. Barrington (Ala.) 89 So. 512; Closson v. Closson, 30 Wyo. 1. The marriage contract differs from others in that it may not be dissolved. Maynard v. Hill, 125 U.S. 190; Lyon v. Lyon, (Okla.) 134 P. 650; Jones v. Jones (Ore.) 117 P. 414. While it is the policy of the law to sustain the marriage relation, it is the duty of courts to decree the dissolution where the statutory conditions are clearly met by convincing evidence. Allfree v. Allfree, (Mo.) 162 S.W. 650; Meyer v. Meyer (Mo.) 138 S.W. 70. Cruelty and indignities are grounds for divorce. 35-108 R.S. 1931. Hanks v. Hanks, 27 Wyo. 65. Appellant argues that the creditors should have been paid from the property of the parties as necessary expenses of the family. The issues can be no broader than the pleadings. Mini v. Mini (Cal.) 45 P. 1044; Westphal v. Westphal (Minn.) 83 N.W. 988; Hoernig v. Hoernig (Wisc.) 85 N.W. 346. All material allegations of the petition were established by the evidence. Rules governing the weight and admissibility of evidence are the rules of the civil court. Collenti v. Tranchina 91 So. 818; Macomber v. Macomber (R.I.) 87 A. 170; Lamb v. Lamb (Va.) 101 S.E. 223. All intendments are in favor of the decree as rendered. Jarrard v. Jarrard (Wash.) 198 P. 741. The appellate court will interfere only for abuse of discretion. Dillon v. Dillon (Cal.) 187 P. 27. Alimony is allowed in lieu of maintenance. Greene v. Greene (Nebr.) 68 N.W. 947; Huffman v. Huffman (Ore.) 86 P. 593. Alimony is distinct from wife's equity in property. The Court had under the statutes, authority to determine property rights. Chapter 35 R.S. 1931; Arp v. Jacobs, 3 Wyo. 489. Alimony is within the broad discretionary powers of the trial court. Lovejoy v. Lovejoy, supra. Alimony is predicated upon husband's ability, social standing of the parties, wife's needs considered in connection with her separate income. Romaine v. Chauncey (N.Y.) 29 N.E. 826; Lovegrove v. Lovegrove (Va.) 104 S.E. 804; Kelley v. Kelley (Ky.) 209 S.W. 335. Some latitude must be allowed the trial court in the exercise of discretion. Mahoney v. Mahoney, 43 Wyo. 157. Respondent submits that the decree of the trial court should be affirmed.
The respondent, as plaintiff in the District Court of Weston County, brought suit for a divorce from the appellant as defendant, and obtained a decree in her favor. This proceeding, by direct appeal, is brought to review the record made and the decree thus rendered.
So far as can be gathered from the allegations of plaintiff's petition which are somewhat voluminous, the statutory (Sec. 35-108, R.S. 1931) grounds relied upon by her to obtain the relief she sought are (1) that the defendant has been guilty of extreme cruelty toward the plaintiff and (2) that he has offered such indignities to her as to render her condition intolerable. The specific acts pleaded to establish these grounds are, briefly, the excessive and abusive use by the defendant of sexual relations with his wife, that he had used obscene language to plaintiff, that he has abused and upbraided her, and that he advertised in the local newspapers that he would not be responsible for any debts incurred by her as his wife, thereby implying that she was a spendthrift.
The proof is that the parties were married December 16, 1924, and there are no children of the marriage. The decree in question was entered on the 19th day of September, 1932. The only evidence submitted to establish the statutory ground of divorce above mentioned seems to be: The answer of the plaintiff on the request of her counsel "Tell the court why you didn't get along," — "We couldn't get along because he said I never did anything to help him and we couldn't get along because he was too sexually minded, and that was the case, I guess." She testified, also, on cross-examination, that the situation between herself and her husband had reached the point of incompatibility, rendering it quite impossible for the parties to live together any more and that to continue the marriage relationship would be very bad for both. There appears to have been no proof at all of obscene or abusive language used by the husband toward the wife. It was established that, some three weeks before the petition in the case was filed and after the parties had separated, the defendant put a notice for one issue in a local newspaper, stating, in effect, that in the future he would not be responsible for debts contracted by her. She testifies that this action on his part caused her to feel badly. It was also proven that the husband, after the divorce action had been commenced, had served a notice upon some neighbors warning them not to trespass upon lands owned by him where she was living, her testimony being that they came to help her, although they were not friendly towards him. Considerable proof was furnished relative to hardships borne by the wife, such as frequently result from farm or ranch life, where the parties have very little of this world's goods, and where both have been afflicted with ill health.
In our judgment, the evidence submitted is wholly insufficient to authorize the court to decree a divorce of the parties. Public policy requires that there be no severance of the marital relations without adequate cause and satisfactory proof thereof. Mere general statements of misbehavior or conclusions of the parties will not suffice. The court must be placed in possession of the facts of the case, and these facts must fairly establish a statutory ground of divorce, in order to invoke the great judicial power to rend asunder the family relation, — a relation on which civilized society so greatly relies for its support.
In Bonham v. Bonham, 25 Wyo. 449, 172 P. 333, 335, this court, applying the principle `that any unjustifiable conduct which so grievously wounds the mental feelings of husband or wife, or utterly destroys his or her peace of mind, as to seriously endanger life or impair bodily health, or which utterly destroys the legitimate ends and objects of matrimony, constitutes cruelty, although no physical or personal violence may be inflicted or even threatened, or reasonably apprehended," held "that mere austerity of temper, petulance of manner, rudeness of language, a want of civil attention, even occasional sallies of passion, if they do not threaten bodily harm, do not constitute cruelty."
12 R.C.L. 253, § 12, states that:
"When an attempt is made through the courts to undo a marriage, the state becomes in a sense a party to the proceedings, not necessarily to oppose but to make sure that the attempt will not prevail without sufficient and lawful cause shown by the real facts of the case, nor unless those conditions are found to exist at the time the decree is made on which the state permits a divorce to be granted."
Also, on page 337, section 116, of the same text, it is pertinently said:
"Married persons must submit to the ordinary consequences of human infirmities and of unwise mating, and the misconduct which will be ground for a divorce as constituting cruelty must be serious."
So. 19 C.J. 20, § 18, declares:
"It is conceded in all jurisdictions that public policy, good morals, and the interests of society require that the marriage relation should be surrounded with every safeguard and its severance allowed only in the manner prescribed and for the causes specified by law."
In this connection, we may well recall the language of the Supreme Court of the United States in Maynard v. Hill, 125 U.S. 190, 31 L.Ed. 654, 8 S.Ct. 723:
"The consent of the parties is of course essential to its existence; but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress."
Mr. Justice Brewer well said, in Smith v. Smith, 22 Kan. 699, 703, "as a rule, haste in divorces is not wise. Courts should not be eager to advance or grant them. They should discourage rather than encourage them. Marriage is a contract, and a relation which, if possible, should endure, and public policy requires that there be no straining of law or facts to end the contract and sever the relation." That the foregoing are not outworn views of the law, the language of the Court of Appeals of Maryland, in the comparatively recent case of Gellar v. Gellar, 159 Md. 236, 150 A. 717, 719, affords appropriate proof:
"It was said by Judge Bartol, in Levering v. Levering, 16 Md. 213, decided in 1860, that `there is no more painful and delicate duty devolved on a court of justice, than that of pronouncing upon the causes which justify a severance of the marriage relation. Public policy and public morals, alike, require that a relation so intimate and tender should not be broken for slight or trivial causes, and impose on us the duty of carefully weighing and considering the grounds upon which we are called on to affirm a decree dissolving the bonds of matrimony, between parties who respectively claim and resist the exercise of the power conferred on us by law.'
"The responsibility, delicacy and difficulty of that duty has been enlarged rather than diminished since that pronouncement. This may with truth be said to be due in part to the present day attitude of the public towards divorced persons. Formerly the state of the public mind was such that the offending spouse in a divorce proceeding was the subject of social ostracism, and even the innocent one was under suspicion of not having fully lived up to the promise made in the marriage ceremony. While this indifference, or what might be termed liberal attitude, on the part of the public now prevails, the law of the state remains substantially as it was at the time Judge Bartol used the language above quoted; and it may be that individuals who constitute the public have lost sight of what the courts are bound to recognize, that the state, representing society as a whole, has a real and vital interest in maintaining the marital status, so that it may not be dissolved except for grave and weighty causes."
A careful study of all the evidence, as it now appears in this case, leads us to say that we are not satisfied, either, with the division of the property made by the district court, as between the parties. The wife seems to have been given all the real estate accumulated by the joint efforts of her and her husband, as well as some personal property, all practically free and clear of encumbrance, while the husband has been assigned only various items of personalty, nearly all of which are subject to mortgage liens. He is heavily in debt. The obligations appear to have been incurred in good faith for the benefit of both parties. He has no money. There are no rights of children or extra burdens imposed upon the wife thereby to be considered. As the case must be retried, it would be improper for us to here indicate an absolute line of division which should guide the district court.
Naturally, we cannot say what a new trial may disclose. It may possibly be that the assignment of property as made to the parties by the decree aforesaid may ultimately be shown to be quite proper. Under the present record, as already suggested, we hardly think it is.
Our conclusion is, therefore, that the judgment must be reversed and a new trial ordered. It is with regret we feel obliged to take this action as it is perfectly plain that the parties can ill afford protracted litigation. Our view of the law and the facts in the case, however, permit no other course.
Reversed.
KIMBALL, C.J., and BLUME, J., concur.